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SMITH v. HECKLER

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


June 16, 1985

JUDY SMITH, Plaintiff,
v.
MARGARET M. HECKLER,1 Secretary, Department of Health and Human Services, Defendant.

The opinion of the court was delivered by: ELFVIN

MEMORANDUM and ORDER

Plaintiff's action for surviving child disability benefits under the Social Security Act, 42 U.S.C. § 402(d), was remanded to the Secretary of Health and Human Services for further proceedings by this Court's Order filed March 26, 1984 and th claimant was subsequently awarded benefits. Plaintiff's attorney now moves for an award of attorney's fees for work performed before this Court on plaintiff's behalf.

Plaintiff's attorney initially sought a fee of $3,390 at an hourly rate of $60 for 56 1/2 hours spent representing plaintiff before this Court. He indicated that he had also petitioned the Secretary for a fee of $4,629 based on 77 1/4 hours of work at the administrative level charged at $60 per hour. Petitioner has stated that he has no agreement with claimant regarding the size of the attorney's fee in this matter. The Secretary has indicated that $5,002.40 -- representing twenty-five per cent of the award of past-due benefits in this case -- have been withheld for attorney's fees.

 Pursuant to 42 U.S.C. § 406(b)(1) this Court may in its discretion award a reasonable fee for plaintiff's representation in this matter, said fee not to exceed twenty-five per cent of the award of past-due benefits. The Court has serious reservations about the hourly totals submitted by the attorney. *fn2" However, and after consultation with the Assistant United States Attorney, petitioner has amended his request and now seeks $2,000 for work done before this Court on plaintiff's behalf.

 Accordingly, plaintiff's attorney's motion for fees in the amount of $2,0000 for work before this Court on the above-captioned case is hereby ORDERED granted.


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